Protections that previously existed for ‘door to door’ and telephone sales are now covered by the Australian Consumer Law as unsolicited sales, or “unsolicited consumer agreements”.
Under the Australian Consumer Law, an unsolicited consumer agreement has the following characteristics:
- It is an agreement for the supply of goods or services;
- made as a result of negotiations between a dealer and the consumer;
- it does not take place in a retail context i.e. negotiations occur either at a place other than the supplier’s business or trade premises (e.g. consumer’s home, a display booth in a shopping centre), or by telephone; and
- the consumer did not invite the dealer to attend or make a telephone call for the purpose of entering into negotiations relating to the supply of those goods or services; and
- the total price under the agreement is not determined at the time the agreement is made or, if it is determined, is more than $100.
[Competition and Consumer Act 2010 (Cth) Schedule 2 s 69].
To be covered by the protections of the Australian Consumer Law it is essential that the supplier make the first approach to the consumer. This may be by phone, by letter (addressed to the consumer) or in person at the consumer’s home, work or any place where the trader normally does not do business. If the consumer contacts the trader first and invites the trader to her or his home, any contract entered is not an unsolicited consumer agreement.
It can be difficult in certain circumstances to determine whether the consumer is the one who has initiated contact but the provisions of the Australian Consumer Law ensure that where there is any dispute there is a presumption that the agreement is an unsolicited consumer agreement and the onus is on the supplier to prove otherwise [Competition and Consumer Act 2010 (Cth) Schedule 2 s 70].
Examples of unsolicited consumer agreements include when a supplier:
- door knocks offering to sell goods or services or inviting the consumer to switch to a different service provider;
- telephones the consumer offering to sell goods or services;
- leaves a missed call message on the consumer’s voicemail/answering machine asking for them to respond;
- approaches the consumer in the common area of a shopping centre and offers to sell the consumer goods or services.
More complicated examples include where a consumer invites a supplier to provide a quote for the supply of goods and services. This contact in itself is not an unsolicited consumer agreement so that if a supplier attempts to enter into negotiations to sell a product or later attempts to contact a consumer to do so, the resulting agreement would be considered an unsolicited consumer agreement. If, however, a consumer approaches the supplier after they have provided a quote to accept it or negotiate different terms, this would not be classified as an unsolicited consumer agreement.
Party plan sales
Party plan sales are specifically excluded from the definition of an unsolicited consumer agreement. The circumstances that meet the criteria for a party plan event are set out in Part 6 of the regulations to the Competition and Consumer Act 2010 (Cth).
Consumers must attend an event on the understanding (express or implied) that the purpose of the event is to negotiate for the sale of goods or services to one or more people and three or more people must be invited (although not necessarily all must attend). Finally, the inviter (presumably this means the seller or the seller’s representative, although it is not clear) must be in the same premises as the consumers.
Permitted hours for negotating an unsolicited consumer agreement
A supplier must not call on a consumer for the purpose of negotiating an unsolicited consumer agreement or for a related purpose [ Competition and Consumer Act 2010 (Cth) Schedule 2 s 73].
- at any time on a Sunday or public holiday; or
- before 9 am on any other day; or
- after 6 pm* on any other day (or after 5 pm on a Saturday) – after 8 pm for telemarketing calls.
Disclosure of identity and purpose
Suppliers are required to clearly advise as soon as is practicable and before they begin negotiations, that their purpose is to seek agreement to a contract for the supply of goods and services. They must also provide details as to their identity i.e. a name and address [s 74].
Suppliers are obliged to leave premises immediately if asked to do so and prohibited from further contact for at least 30 days [s.75].
Penalties can be imposed for suppliers who breach these provisions.
Cooling off rights
Consumers have the right to terminate an unsolicited consumer agreement, either orally or in writing, within 10 business days of negotiating the agreement [s.82]. This is referred to as a ‘cooling off’ period. During the cooling off period the supplier must not supply any goods or services or accept payment from the consumer [s 86].
The consumer will be liable to pay compensation if they return goods in a less than reasonable state. However, they will not be responsible for any damage or depreciation that occurs in the course of normal use of the goods or as a result of circumstances beyond their control.
Cooling off for other reasons
In certain circumstances the length of the cooling off period may be extended.
If the seller or their representative:
- calls outside of the permitted hours without being invited by the consumer; or
- does not identify the purpose of the visit; or
- does not inform the consumer of their right to ask the seller to leave at any time; or
- does not provide proof of identity before discussing their product with the consumer; or
- leave when asked
the cooling off period is extended to 3 months from the day after the signing of the contract [s 82(3)].
If the seller or their representative:
- fails to inform the consumer of their cooling off rights; or
- contravenes the requirements for the content of an agreement set out in ss 78-81 of the Australian Consumer Law, Competition and Consumer Act 2010 (Cth) including the provision of a notice regarding the right to cool off; or
- supplies goods or services or accepts payment from the consumer*
the cooling off period is extended to 6 months from the day after the signing of the contract [s 82(3)(d)].
*From 2012 if the total contract price is less than $500 and the supply is for goods only, the purchaser may receive some or all of the goods.
Borrowing to purchase unsolicited goods or services
Consumers may purchase goods or services under an unsolicited consumer agreement by way of credit provided by a third party credit provider. The Australian Consumer Law makes no provision for the termination of credit contracts associated with the purchase of unsolicited goods or services where a consumer exercised the right to cool off, notwithstanding that the consumer agreement is void on cooling off and other related contracts are also automatically void [Competition and Consumer Act 2010 (Cth) Schedule 2 s 83].
Part 7 of the National Credit Code (NCC) provides for the termination of applicable credit contracts where a consumer terminates a contract, either by cooling-off or for some other reason. Note that Part 7 of the NCC does not only apply to unsolicted consumer agreements, but also applies to the termination of any type of consumer contract.
In order for the provisions to operate, certain conditions must be met:
- The credit provider must be a linked credit provider; and
- The credit contract must be either a tied continuing credit contract or a tied loan contract.A “linked credit provider” is a credit provider:
- who has a contract arrangement or understanding relating to the supply of the goods, or
- to whom the supplier regularly refers consumers to obtain credit; or
- whose forms or offers of credit are, by arrangement, made available by the supplier to persons
- with whom the supplier has an arrangement under which contracts or applications for credit from the credit provider may be signed by persons at the premises of the supplier [National Consumer Credit (NCC) Code s 127]
A tied continuing credit contract might be a credit card or overdraft facility, the provider of which is linked to the supplier [s 127(2)]. Using a normal credit card or overdraft to pay for the goods or services is unlikely to be caught by this provision.
A tied loan contract is a loan contract where the credit provider knows or ought reasonably to know that the consumer entered into the contract for the purpose of purchasing the goods or services supplied by the supplier and, at the time of the contract, the credit provider was a linked credit provider of the supplier [s 127(3)].
If the consumer exercises the right to cool off, thereby rendering the consumer agreement void, the consumer is also entitled to:
1. in the case of a tied loan contract – terminate the contract; or
2. in the case of a tied continuing loan contract – a refund of the amount of credit and interest charges paid in relation to that credit [NCC s 135].
The supplier is required to inform the credit provider that the sale contract has been rescinded and failure to do so attracts a criminal penalty [s 135(6)]. The requirement to inform is limited to credit provided in relation to unsolicited consumer agreements.
An entitlement to terminate a tied credit contract may be exercised only by notice in writing by the 'other party to the contract' [s 137]. The other party to the contract is usually the consumer.
There may be situations where the supplier may refuse, neglect, overlook or be unable to inform the credit provider (such as following the appointment of an external administrator or liquidator). Therefore the consumer should act prudently and comply with s 137 at the same time as terminating the sale contract to ensure that the credit provider does not take action in reliance on the tied credit contract.
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